Ripley: Scalia Blows a Gasket Over DNA Decision


During a recent Supreme Court ruling Justice Antonin Scalia opinioned, “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Who knew a Q-tip could cause so much trouble? Twenty eight states currently use these cotton tipped wonders to collect DNA evidence from individuals arrested, but not yet convicted for various levels of crimes. A divided Supreme Court ruled 5-4 that such practices do not violate the 4th Amendment of the United States Constitution.

Justice Anthony Kennedy provided the majority opinion that was joined by Chief Justice John Roberts, and Justices Samuel Alito, Stephen Breyer, and Clarence Thomas. Kennedy argues that the DNA collection is “minimally intrusive” and necessary in the process of identifying those arrested for serious crimes.

“DNA identification is an important advance in the techniques long used by law enforcement to serve legitimate police concerns. Po­lice routinely have used scientific advancements as standard proce­dures for identifying arrestees,” Justice Kennedy wrote. “The additional intrusion up­on the arrestee’s privacy beyond that associated with finger printing is not significant, and DNA identification is markedly more accurate.”

Justice Scalia provided the dissenting opinion that read more like a Comedy Central Roast of his fellow justices than a legal opinion on a Supreme Court case. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined Justice Scalia in his scathing remarks on the decisions.

“It is obvious that no such non-investigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” Justice Scalia wrote.

DNA evidence takes several weeks to process. During this time, those incarcerated have been arraigned and in many cases have been to bail hearings. Clearly the court has identified the accused at this point in the process. Thus the argument that DNA is collected with a lack of reasonable suspicion in order to conduct criminal investigations.

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

The case at hand, Maryland v. King, involved Alonzo King who was arrested in 2009 for first and second degree assault. Maryland Police processed his DNA which was found to match the DNA from a 2003 rape case for which King was tried and convicted. That conviction was overturned by the Maryland Court of Appeals. The state appealed and brought the case to the Supreme Court.

Paramount to the dissenting Justices opinion is the impact of the decision on protecting the privacy of individuals. Putting away criminals is important to all involved; however, the far-reaching implications of collecting DNA are of great concern.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school,” Justice Scalia wrote.

With the blessing of the Supreme Court, police departments are now allowed to collect and process DNA of anyone that the police need to identify. There is nothing in this decision that prevents law enforcement from collection your DNA during a traffic stop or even after jaywalking so long as the intended use of the DNA is “identification.” This is a clear violation of individual liberty. As Justice Scalia concluded, “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

Read Justice Scalia’s dissenting opinion here.

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Ryan Ripley is a 34 year old husband and father of two living in Fort Wayne, Indiana. He graduated from Indiana Wesleyan University with a BS in Business Administration. Prior to joining the Libertarian Party, Ryan unsuccessfully ran for a seat on the Marshall County Council in 2010 and on the Plymouth Common Council in 2011 as a Democrat. During that time he also served as the acting Chairman of the Marshall County Democratic Party. Ryan is on Twitter (@ryanripley) and can be reached at

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